Usman Ali Vs Saima Bibi etc

v Judgment Sheet

(Judicial Department)

Usman Ali Vs Saima Bibi etc.

IUDGMENT

For petitioner:

For respondents:

(via video link)

Date of hearing: 10.11.2025 ***tl.*

MUHAMMAD TARIO AFRIDI. J.- By this single judgment, I intend to decide writ Petition No.327-812024 and writ Petition No.383-B 12024, as both petitions arise out of the.judgment dated a 30.04.2024 passed by the learned Additional District Judge-IV, Lakki Marwat, whereby the appeal filed by Saima Bibi and others was was allowed, the order of the Executing court dated 12.06.2023 set aside, and the amount of monthly installments was enhanced from Rs.15,000/- to Rs.30,000/- per month. out of this amount, while Rs.15,000/- was directed to be paid as current maintenance, the remaining amount was ordered to be adjusted towards the outstanding arrears of maintenance'

2.The brief facts of the case are that plaintiff / decree-holders Saima Bibi and her minor daughters, Hurain and Moazma, (hereinafter referred to as the respondents) instituted Family Suit

judgment-debtor usman No.54lFC of 2013 against the defendant / Ali (hereinafter referred to as the petitioner), seeking recovery of and her minor dower, dowry articles, and maintenance for herself daughters. After full.fledged txial, the suit was decreed by the Family Court, Lakki Marwat, vide judgment and decree dated Maintenance all0wance was awarded at the rate of 2g.01.20L5.

(s.8.) Mr. Muhammad Tariq Zaman)

a

v Rs.4,000/- per month to respondent No.l (wife), subject to restitution of conjugal rights, and Rs.3,000/- per month to each of the two minors, with l07o annual increase. The claim for dower and dowry articles was declined.

3.Subsequently, execution petition was filed by the respondents before the Executing Court. However, as the parties had again begun to live together, the decree-holder submitted an application expressing her desire not to pursue the execution proceedings for the time being, and sought sine die adjournment. The application was allowed, and the execution proceedings were adjourned sine die vide order dated 21.05.2015, leaving the decree-

holder at liberty to seek restoration at any time'

4.On 08.06.2015,the decree-holder filed an application seeking petitioner had restoration of the execution petition, alleging that the 4 agafitousted her from his house. The application was allowed, and

the execution petition was restored. During the resumed depositing proceedings, the petitioner submitted that he had been maintenance amounts from time to time with the Nazir of the Court' custody for a and that one of the minors had remained in his deductions. He considerable period, entitling him to coffesponding further submitted an application dated 20.12.2022 seeking in monthly permission to pay the outstanding arrears of maintenance installments. The said application was allowed by the Executing petitioner to pay court vide order dated 12.06.2023, directing the Rs.15,000 l- pu month as installments on or before 15ft of each month till satisfaction of the decree'

Aggrieved, the respondents preferred Family Appeal

learned Additional No.08lFCA of zoz3,which was allowed by the judgment dated 30.04.2024, District Judge.IV, Lakki Marwat, vide wherebytheorderoftheExecutingCourtwassetaside,andthe to Rs'30,000/-, out amount of the monthly installment was enhanced current maintenance' of which Rs.15,000/- was directed to be paid as towards the while the remaining amount was ordered to be adjusted Zaman) (S.B.) Hon'ble Mr

outstanding arrears of maintenance. The Executing Court was also directed to deduct the maintenance allowance of the minors for the period during which they remained with the petitioner.

6, This prompted both parties to prefer the listed writ petitions. The petitioner Usman Ali seeks a reduction of maintenance to Rs.10,800/-, contending that the l0% annual increase was directed to be applied only on the maintenance amount determined by the Family Judge as current maintenance on the date of decree. He further prays for a direction to the Executing Court to correctly compute the outstanding amount by deducting the maintenance already accounted for in respect of respondent No.l and maintenance for the period during which the respondent No.2 & 3 resided with him. Conversely, the respondents seek setting aside of the impugned judgment and order and a direction to compel the petitioner to pay the outstanding maintenance in lump sum.

7.Arguments heard. Record perused.

8.A perusal of the record reveals that the Executing Court, by order dated 12.06.2023, allowed the petitioner's application for payment of the decretal amount in monthly installments, fixing the amount at Rs.15,000/- per month. However, the order does not speciff bifurcation between current maintenance and anears, nor does it clariff the mode in which the installments are to be adjusted against the outstanding decretal amount. Similarly, the Appellate Court, while setting aside the Executing Court's order and enhancing the monthly installment to Rs.30,000/-, failed to record any reasons regarding the financial capacity of the petitioner. The absence of such an inquiry renders the appellate judgment procedurally improper. Most significantly, the Appellate Court itself acknowledged the lack of deduction for the period during which the minors resided with the petitioner, observing as under:

"It is on record that some amount has been paid by JD/respondent so far, however, it is the contention of appellants that huge amount of Rs.630846/- is still (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi

v outstanding against the JD/respondent but from the said amount, the duration during which minors remained with their father has not been deducted by appellants. Be that as it may, a huge decretal amount is still outstanding against the respondent and the quantum of installments fixed by the executing court does not seem to be reasonable. The order of learned executing court is also silent regarding the fact as to how much amount of the monthly installment is to be adjusted in the outstanding decretal amount and what is the amount fixed for the current maintenance allowance of minors."

g. Despite recording the above observations, the Appellate Court proceeded to enhance the monthly installment to Rs'30,000/- without first resolving the factual disputes acknowledged in its judgment. No direction was issued to determine the actual period was any during which the minors remained with the petitioner, nor after such inqury ordered to ascertain the precise quantum of arrears deduction.Likewise,theambigultyregardingtheapplicationofthe amount or on 10% annual increase, whether on the original decretal the absence of the enhanced amount, was also left unaddressed. In such determinations, the enhancement of the installment amount and to have been the setting aside of the Executing court's order appear to the settled legal undertaken in undue haste and without adherence principles.

l0.Moreover,thedecreeitselfissilentquathemodeof in maintenance' computation for applying the annual lo% increase Adisputeexistsbetweenthepartiesastowhethertheincrease appliestotheoriginalamountortothepreviouslyenhancedamount eachyear.Thisambiguitymateriallyaffectsthecalculationof must be addressed through current and outstanding maintenance and

areasoneddeterminationbytheExecutingCourt.Furthermore,the dated 20.12.2022, seeking permission to pay petitioner,s application recording or the amount in installments, was decided without examining any evidence regarding his financial condition'

1l'.Inthesecircumstances,thisCourtisoftheviewthatthe court on all factual matter requires reconsideration by the Executing Mr. Justice Zaman)

\- and legal aspects. Therefore, wP No.327-Bl2o24 filed by usman Ali is allowed, the impugned judgment dated 30.04.2024 is set aside, and the matter is remanded to the Executing Court with the following directions:

i. To determine the total outstanding amount of maintenance taking into consideration the period during which the decree-holder resided in the judgment-debtor's house particularly during the time, the execution proceedings remained adjourned sine die.

ii. The Executing Court shall prepare a month-wise statement of maintenance paid and payable for each year and shall thereafter pass a clear order regarding its payment, in such mode and manner as the Court may determine;

iii. The Executing Court shall provide a fair opportunity to the parties to lead evidence regarding the financial condition of the judgment-debtor, and shall thereafter re- decide the judgment debtor's application dated 20.12.2022, for payment of maintenance in installments by passing a speaking order determining the rate and mode of payment of monthly maintenance (both current and arrears) to the decree holder;

iv. The Executing Court may also fix the amount of monthly maintenance to be paid regularly by the judgment-debtor until the decision of the aforementioned application.

12.As WP No.327-B 12024 is allowed and the matter is remanded to the Executing Court with the aforementioned directions, the connected WP No.383-B 12024 has become infructuous and is accordingly dismissed.

uL Announced

JUDGE

(Ghafoor Zaman) Hon'ble Mr. Justice Tariq Afridi